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Thursday, July 14, 2016

As
we’ve discussed in prior posts, a top strategic enforcement focus of the EEOC
is protecting LGBTQ individuals from discrimination in the workplace. The EEOC
filed its first Title VII lawsuits alleging sex discrimination against
transgender individuals in late 2014, and the EEOC’s efforts in this area
continue to make headlines.

The
EEOC’s most recent suit, filed last week, is against
Bojangles Restaurants, Inc., which operates a chain of fast food restaurants in
the Southeast portion of the United States. In the lawsuit, the EEOC claims
that a transgender woman, Jonathan Wolfe, was subjected to a hostile work
environment because of her gender identity and fired from her biscuit maker job
at a North Carolina Bojangles restaurant in retaliation for reporting the
harassment. According to the suit, the alleged harassment included restaurant
managers making offensive comments about Wolfe’s appearance and repeatedly
demanding that she engage in behavior and grooming practices that are more
stereotypically male. The EEOC also alleges that the restaurant’s management
forbade Wolfe from visiting the restaurant off-duty while dressed as a woman
and that an assistant manager made harassing remarks about the need “to pray.” In
addition, the EEOC alleges that the restaurant’s director prohibited Wolfe from
wearing makeup, fake fingernails, or her hair in braids while at work and
threatened to terminate her if she did not remove her braids. According to the
suit, Wolfe complained on more than one occasion, with no relief, and then was
fired on the same day that she called an employee hotline to complain about the
restaurant director’s treatment of her.

The
suit against Bojangles is one of several currently pending EEOC
suits in which
the EEOC alleges that transgender discrimination is prohibited by the sex
discrimination provision of Title VII of the Civil Rights Act of 1964. The EEOC
has also settled several suits of this nature, including with some Minnesota
employers. Earlier this year, a Minnesota-based company agreed to pay $115,000
as part of a settlement of one such EEOC suit. In that suit, the EEOC alleged that Deluxe
Financial Services Corp. violated Title VII when a transgender woman was
subjected to a hostile work environment after she informed her supervisor that
she was transgender and began presenting as a woman at work. The suit alleged
that the harassment included hurtful epithets, intentional use of the wrong
gender pronouns, and refusal to allow the employee to use the women’s restroom.
Also, last year, a Florida eye clinic agreed to pay $150,000 to settle an EEOC lawsuit seeking relief for an employee
who allegedly was fired after she informed her employer that she was
transgender and began presenting as a woman at work.

Employers
can expect to see more suits asserting transgender discrimination under Title
VII as the EEOC’s focus in this area continues. Courts are still weighing in on
whether Title VII does, in fact, prohibit transgender discrimination given that
it includes no express language covering gender identity as a protected class. The
EEOC’s position, which is resonating with some courts, is that gender identity
discrimination is prohibited sex stereotyping discrimination that violates
Title VII.

Apart
from Title VII, however, Minnesota employers should be mindful that the
Minnesota Human Rights Act does expressly identify gender identity as a
protected class and, therefore, prohibits transgender discrimination. While
some religious employers may be exempt from aspects of Minnesota’s
discrimination laws, most employers are subject to the law’s prohibition on transgender
discrimination. Accordingly, those employers should proactively conduct
appropriate anti-harassment training for employees and managers and review and
update their policies and practices, being mindful of the unique challenges
faced by transgender employees. In addition, Minnesota employers should be
mindful of the EEOC’s position that transgender employees must be granted
access to the restroom that corresponds to the individual’s gender identity.

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